92 Decision Citation: BVA 92-08359
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-36 583 ) DATE
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THE ISSUE
Entitlement to an increased rating for a back disability
classified for rating purposes as "spondylolisthesis, 1st
degree, L5 and S1, simple transverse process, first lumbar
vertebra, postoperative, with associated conversion reac-
tion," currently avaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
R. L. Shaw, Counsel
INTRODUCTION
The veteran had active military service from November 1942
to January 1946.
This matter comes to the Board on appeal from an February
1990 rating decision by the Little Rock, Arkansas, Regional
Office (RO) of the Department of Veterans Affairs (VA). The
notice of disagreement was received on March 26, 1991. The
statement of the case was issued on July 9, 1991. The
substantive appeal (VA Form l-9) was received on July 20,
1990. A hearing on appeal was held before a hearing officer
at the RO on October 4, 1991. By a decision of February 20,
1991, the hearing officer confirmed and continued the denial
of the claim. A supplemental statement of the case was
issued on March 14, 1991. The case was received by the
Board on July 12, 1991, and docketed on July 16, 1991. The
veteran is represented by the Disabled American Veterans.
Additional written argument in support of the appeal was
received from that organization on October 3, 1991.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he experiences severe pain in the
low back which radiates down to the lower extremities through
both hips, thighs and calves, worse on the right. He states
that the pain is present all of the time. He contends
further that he experiences numbness in the legs, especially
the right, as well as a pins-and-needles sensation in the
extremities. He claims that he is constantly in fear of
stumbling and falling. He claims that the symptoms have
worsened substantially in recent years. With respect to the
rating criteria governing his claim, he argues that an
additional 10 percent should be assigned under Code 5285 for
vertebral deformity at the site of his previous vertebral
fracture.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
opinion of the Board that the preponderance of the evidence
is against the claim for an increased rating for a back
disability classified for rating purposes as "spondylolis-
thesis, 1st degree, L5 and S1, simple transverse process,
post operative with associated conversion reaction."
FINDINGS OF FACT
1. The VA has assembled the evidence necessary for proper
adjudication of the issue on appeal.
2. The veteran has a Grade I to II spondylolisthesis of L4
on L5 with narrowing and obliteration of the joint space;
there is severe limitation of motion as well as complaints
of pain in the back with radiating pain and numpness in the
lower extremities.
3. Disability equivalent to more than unfavorable ankylosis
of the lumbar spine or severe intervertebral disc syndrome
has not been demonstrated.
4. The organic aspects of the back disability predominate
over the psychiatric aspects as the cause of the major degree
of disability.
CONCLUSION OF LAW
The criteria for a rating in excess of 40 percent for a back
disability classified as "spondylolisthesis, 1st degree, L5
and S1, simple transverse process, first lumbar vertebra,
postoperative, with associated conversion reaction" are not
met. 38 U.S.C. §§ 1155, 5107(a) (1992); 38 C.F.R. Part 4,
Codes 5299-5289 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
The Board notes preliminarily that the veteran's claim for
increase is well grounded within the meaning of 38 U.S.C.
§ 5107(a) (1992). That is, it is "a plausible claim, one
which is meritorious on its own or capable of substantia-
tion." Murphy v. Derwinski, U.S. Vet. App. No. 90-107
(November 8, 1990). Once a claim is recognized as well
grounded, the VA has a statutory obligation to assist the
claimant in the development of the evidence required to
support the claim. 38 U.S.C. § 5107(a) (1992). The Board
finds that the statutory obligation has been satisfied and
that no further development is warranted.
The service-connected back disability originated in an injury
sustained in February 1944 when the veteran accidentally fell
backward on his canteen while on bivuoac and fractured the
left transverse process of the first lumbar vertebra without
displacement. He was later treated in 1945 for a lumbosacral
strain resulting from a fall from a truck. In October 1947,
service connection was granted for residuals of a simple
fracture of the first lumbar vertebra and a 10 percent rating
was assigned under diagnostic code 5295 of the 1945 VA Sched-
ule for Rating Disabilities. The rating was later raised to
40 percent by a rating decision of March 1963; the service
connection grant was enlarged to include first degree spondy-
lolisthesis of L5 on S1. In February 1964, the grant was
expanded again to include "associated conversion reaction."
A 40 percent rating was continued under code 5299-5289 by
analogy to vertebral fracture. In September 1962 a posterior
neural arch resection with bilateral lateral fusion to cor-
rect first degree spondylolisyhesis of L5 on S1 was per-
formed. The veteran sustained a compression fracture of L-2
in early 1973. This additional disability is nonservice
connected.
II. Analysis
The current 40 percent rating under code 5299-5289 has been
assigned by analogy to ankylosis of the lumbar spine. Anky-
losis at a favorable angle receives a 40 percent rating; a
50 percent rating requires fixation at an unfavorable angle.
Other codes under which the veteran has potential eligibility
for an increase include code 5293 (intervertebral disc syn-
drome). A 40 percent evaluation is provided for severe
intervertebral disc syndrome with recurring attacks with
intermittent relief. A 60 percent evaluation requires pro-
nounced intervertebral disc syndrome with persistent symptoms
compatible with sciatic neuropathy (i.e., with characteristic
pain and demonstrable muscle spasm and an absent ankle jerk
or other neurological findings appropriate to the site of the
diseased disc) and little intermittent relief. 38 C.F.R.
Part 4, Code 5293.
The current status of the veteran's back is described in the
report of a special VA orthopedic examination performed in
November 1990. He indicated that he had had no hospitaliza-
tions since 1962 and took only Motrin on an intermittent
basis. Forward flexion was to 45 degrees with pain. Left
and right tilting were to 10 degrees with pain. Hyperexten-
sion was to the neutral position. X-rays showed normal
alignment of the spine. There appeared to be a Grade I to
II spondylolisthesis with narrowing and obliteration of the
L4-L5 space. Examination showed no list or scoliosis of
the spine. There was no muscle spasm. In the lower extremi-
ties there was no sciatic notch tenderness, gluteal atrophy
or muscle weakness. Straight leg raising was negative and
the circumferences of the thighs were equal. Knee and ankle
jerks were normal.
The veteran voluntarily began a course of therapy in December
1990 to reduce back pain without medication. An attempt was
made in April 1991 to perform electromyography but the
veteran was unable to tolerate the procedure. The inability
to obtain evoked potentials was thought possibly to be
consistent with peripheral neuropathy.
Although the disability is rated by analogy to ankylosis at
a favorable angle, the presence of motion in the lumbar spine
(albeit severely limited motion) indicates that no true
ankylosis (complete bony fixation) is present. Consequently,
there is no basis for raising the rating under the literal
wording of the ankylosis code, and disability equivalent to
unfavorable ankylosis is not shown. The presence of radi-
ating pain and numbness in the extremities suggests an
intervertebral disk syndrome, and the veteran is potentially
eligible to an increase under code 5293. However, the code
requirements for a finding of pronounced disability due to
disk disease are not documented. In particular, there is no
indication of sciatic neuropathy manifested by characteristic
pain, demonstrable muscle spasm, absent ankle jerk or the
like. The objective findings in the lower extremities are
normal and the intervertebral disk syndrome is shown to
consist of subjective complaints.
The veteran requests that a 10 percent rating be assigned
under Diagnostic Code 5285 for vertebral body deformity.
Residuals of fracture of a vertebra are rated at 60 percent
if there is no spinal cord involvement, but abnormal mobility
is present which requires a neck brace (jury mast). In
other such cases, the residuals are rated on the basis of
resulting definite limitation of motion or muscle spasm,
adding 10 percent for demonstrable deformity of a vertebral
body. 38 C.F.R. Part 4, Code 5285. However, review of
X-rays taken of the lumbar spine during and since service
shows no indication of deformity of the body of L5; indeed,
only a transverse process of the first lumbar vertebra was
fractured. There is deformity of the body of L2, but this
resulted from a postservice injury in March 1973 and is not
included in the service connection grant.
The grant of service connection was enlarged in 1964 to
include symptoms of an "associated conversion reaction."
Conversion reaction is rated under diagnostic code 9402, but
the disorder is analogous for rating purposes to psycho-
physiological musculoskeletal reaction, which is rated under
code 9505. Both codes follow the general formula for rating
psychoneurotic disorders but are subject to the caveat that
when two diagnoses, one organic and the other psycho-
physiologic or psychoneurotic, are presented for organic and
psychiatric aspects of a single disability entity, only one
percentage evaluation will be assigned under the appropriate
code determined to represent the major disability. (See the
notes under codes 9402 and 9505) A psychogenic component to
the veteran's back disability was identified by a VA psychi-
atrist in 1964. On the most recent psychiatric examination,
in January 1991, grandiosity of presentation and various
symptoms attributed to a personality disorder were noted,
but no symptoms of conversion reaction or psychophysiological
musculoskeletal reaction involving the back were specifically
reported. Under the rating code for either disorder, consid-
erable impairment of social and industrial adaptibility would
be required to raise the rating to 50 percent, the next
higher level. No symptoms signifying this level of disabil-
ity have been shown regardless of the current psychiatric
classification. Consequently, the orthopedic aspects of the
service connected disability are shown to predominate,
thereby requiring the continuation of the rating under the
orthopedic codes.
The veteran's claim must also be considered under the
provisions of 38 C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.7.
Under 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation
commensurate with the average impairment of earning capacity
due to the service-connected disability may be assigned if
the case presents such an exceptional or unusual disability
picture (with such related factors as marked interference
with employment or frequent periods of hospitalization) as
to render impractical the application of the regular
schedular standards. No circumstances warranting assignment
of a higher rating without regard to the schedular standards
are shown. 38 U.S.C. § 4.7 provides that, where there is a
question as to which of two evaluations should be applied,
the higher evaluation may be assigned if the disability pic-
ture more nearly approximates the criteria for that rating.
However, the disability picture presented in this case
corresponds with the criteria provided in code 5289 and does
not more nearly approximate the criteria required for a 50
percent rating under any of the other codes discussed herein.
The Board finds that the positive evidence is outweighed by
the negative evidence in this case and that the veteran has
not satisfied the burden of proof required for favorable
action on appeal.
ORDER
An increased rating for a back disability classified as
"spondylolisthesis, 1st degree, L5 and S1, simple transverse
process, first lumbar vertebra, postoperative, with associ-
ated conversion reaction" is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) U. H. ANG, M.D.
DANIEL J. STEIN
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.